Powell's Books Inc., et al, v. John Kroger, et al

September 20, 2010 - This morning, the United States Court of Appeals for the Ninth Circuit held that two Oregon statutes that criminalize distributing sex education and other non-obscene materials to minors are unconstitutional in violation of the First Amendment. The State of Oregon argued that the statutes applied only to “hardcore pornography,” but the Ninth Circuit found that they applied to much more, including “The Joy of Sex,” “Mommy Laid an Egg, or Where Do Babies Come From,” Robie Harris’ “It’s Perfectly Normal,” Kentaro Miura’s manga “Berserk,” Judy Blume’s “Forever,” and Margaret Atwood’s “A Handmaid’s Tale.” The plaintiffs did not challenge Oregon’s existing law making it a crime to contact a minor with the intent of having sexual contact.

“This is an important victory permitting readers − both younger and older − to obtain what they are constitutionally entitled to read,” said Michael Powell of plaintiff Powell’s Books. “It is also a victory for booksellers who do not want to ask 13-year-olds for identification or risk going to jail for selling a Judy Blume book.”

“The court did the right thing by rejecting the State’s promise that it wouldn’t prosecute the plaintiffs under these statutes,” said P.K. Runkles-Pearson, counsel for plaintiffs. “This decision allows educators to provide straightforward health information to minors without worrying that the State will prosecute if it disagrees with them.”

Plaintiffs were represented by Michael A. Bamberger of Sonnenschein Nath & Rosenthal LLP, New York, general counsel to Media Coalition, and P.K. Runkles-Pearson of Stoel Rives LLP, Portland, Oregon, a cooperating attorney for the ACLU of Oregon.

___________________________________________________

BACKGROUNDUnder a new Oregon law (ORS 167.054), that grandmother could be charged with providing materials that are “sexually explicit” to a minor. And under that and a second new law (ORS 167.057), booksellers, librarians, community-based organizations, health-care providers, parents and other family members also are at risk, potentially facing jail time and hefty fines up to $125,000.

“For booksellers, the new law is vague and difficult to apply,” said Michael Powell, owner of Powell’s Books in Portland and a plaintiff in the case. “It says a 13-year-old can legally buy these books, but it’s a crime to sell them to a 12-year-old. How do I ‘card’ a 12-year old?”

The ACLU of Oregon joins Powell’s, several other book stores, Planned Parenthood of the Columbia/Willamette, Cascade AIDS Project and others in challenging the new state law. While the Oregon legislature passed HB 2843 in 2007 as a well-intentioned effort to target sexual predators, the law itself is so broad and vague and unconstitutional that it potentially criminalizes many constitutionally protected providers of sex education materials.

“Unfortunately, this new law does not take into account whether someone’s intent is to harm the minor;” said David Fidanque, Executive Director of the ACLU of Oregon. “It criminalizes all acts of furnishing ‘sexually explicit’ material no matter who is doing it and no matter for what purpose.”

The new statutes improperly criminalize, under varying conditions, the dissemination to minors of constitutionally protected materials that contain visual, text or narrative descriptions of sexual conduct. These laws create a chilling effect on the sale, display, exhibition and dissemination of legally protected speech and expression.

The new laws create widespread problems: • A health educator with Cascade AIDS Project who provides sex education materials to or discusses safe sexual behaviors with a teenager may be charged with a Class C felony. (And those who can claim an affirmative defense under the statutes cannot clear their names until after charges are filed, not before.) • A 17-year-old girl who lends her 13-year-old sister a copy of “Forever,” by Judy Blume, and tells her to “read the good parts” could be arrested and prosecuted for violating this law. • If a 9-year-old flips through the pages of “Where Did I Come From?” (a fact-based sex-education book for ages 4-8) at a bookstore, the bookstore is “furnishing” that child with “sexually explicit material” under the new law, and could face misdemeanor charges. • There are some exemptions in one of the laws — public librarians; museum, school or law enforcement agency employees; or medical treatment providers — but those exemptions are not defined. Does a trained Planned Parenthood Peer Educator qualify as a “medical treatment provider”? If public librarians are exempt, what about librarians who work at private schools?

• Finally, the laws criminalize constitutionally protected acts. It is not unconstitutional for a 17-year-old to read a sexually explicit book and become aroused. But under this law, it can be a crime to give that 17-year-old such a book. So lending, giving or selling a 17-year-old a health-education book that includes information on sex or sexuality could be criminal even when the actual reading of that book by a 17-year-old is not.

The lawsuit seeks to have all but one provision of the statutes declared unconstitutional and to enjoin their enforcement based on their violation of the First, Fifth and Fourteenth Amendments of the U.S. Constitution.

Representing plaintiffs are ACLU cooperating attorney P.K. Runkles-Pearson of Stoel Rives LLP in Portland and Michael A. Bamberger and Rachel G. Balaban of Sonnenschein Nath & Rosenthal LLP in New York. Bamberger also is general counsel to Media Coalition Inc., an association that defends the First Amendment right to produce and sell books, movies, magazines, recordings, DVDs, videotapes and video games, and defends the American public’s First Amendment right to have access to the broadest possible range of opinion and entertainment.